Chief Justice Kilbride and Justice Thomas concurred in the judgment and opinion.

Justice Freeman specially concurred, with opinion.

Justice Garman concurred in part and dissented in part, with opinion.

Justice Karmeier dissented, with opinion, joined by Justice Theis.

This Champaign County civil lawsuit seeking damages comes before the supreme court
on an appeal from the granting of a motion to dismiss. No trial has occurred.

At the Thomas Paine Elementary School in Urbana School District No. 116, two different
second-grade girls who are the minor plaintiffs here were molested by their teacher, Jon
White, one during the 2005-06 school year and the other during the 2006-07 school year. It
came to light that White, who started in Urbana in August of 2005, had previously engaged
in similar misconduct when he taught in adjacent McLean County at Brigham Elementary
School in Bloomington and Colene Hoose Elementary School in Normal. Both of the latter
schools are in McLean County Unit District No. 5. White has since been convicted of
molesting students in both school districts, and this is not the only civil action arising from
his misconduct. White, both school districts, and administrators in each of them were named
as defendants here, but only the McLean district and its employees are involved in this
appeal. It was complained that the McLean district and its administrators knew about White’s
offenses but “passed” him on, allowing him to take employment in Urbana. The defendants
argued that no cause of action had been stated because school administrators in McLean
County Unit District No. 5 owed no duty to students in Urbana. The circuit court of
Champaign County dismissed the suit for lack of duty, but the appellate court reversed. In
this decision, the supreme court agreed with the appellate court, but for different reasons, that
a duty had been alleged.

Insofar as the Tort Immunity Act provides immunity from negligence, that immunity is
not applicable here because the plaintiffs did not allege mere negligence, but willful and
wanton conduct. During the 2004-05 school year in McLean County, White had twice been
removed from his classroom for disciplinary reasons and he did not complete the academic
year before he departed. When McLean administrators filled out an employment
“verification” form for the Urbana school district, this information was omitted even though
it would have been easy to accurately fill out the form. This misstatement of White’s
employment history implied that his severance was routine, rather than due to his
misconduct. A truthful disclosure could well have been a “red flag” to Urbana to investigate
the circumstances of White’s departure. Had Urbana been aware of this discrepancy, it is
certainly possible that it would have investigated further and either not hired White or fired
him before he offended again. Because of the risk of recidivism associated with sex
offenders, the injuries which did occur here were reasonably likely and foreseeable, and it
cannot be said as a matter of law that what occurred was so remote or unlikely as to preclude
a duty owed by the defendants. The plaintiffs sufficiently alleged facts supporting a finding
that the defendants, having undertaken the affirmative act of filling out the employment
verification form, owed the plaintiffs a duty to use reasonable care in ensuring that the
information was accurate.

Noting the public policy in Illinois favoring the protection of children, the supreme court
held that the circuit court should not have dismissed for lack of a duty of care, and the cause
was remanded there for further proceedings.

The remaining issues to be decided are the factual ones of whether a duty was breached,
whether there was willful and wanton conduct, and whether it proximately caused plaintiffs’
injuries. These are for the jury.